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J U D G M E N T I.E. MUGETA, J. on 17/2/2018, a By-Election of A

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J U D G M E N T I.E. MUGETA, J. on 17/2/2018, a By-Election of A IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM APPELLATE JURISDICTION CRIMINAL APPEAL NO. 76 OF 2020 (Original Criminal Case No. 112 o f 2018 o f the Resident Magistrates Court o f Dar es Salaam at Kisutu before Hon. T.K. Simba - PRM) FREEMAN AIKAEL MBOWE.....................................................1st APPELLANT PETER SIMON MSIGWA......................................................... 2nd APPELLANT SALUM MWALIMU..................................................................3rd APPELLANT JOHN JOHN MNYIKA............................................................. 4™ APPELLANT ESTHER NICHOLAS MATIKO.................................................. 5™ APPELLANT HALIMA JAMES MDEE............................................................6™ APPELLANT JOHN WEGESA HECHE........................................................... 7™ APPELLANT ESTER AMOS BULAYA............................................................ 8™ APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT JUDGMENT 19,n May, 2020 & 25th June, 2021 I.e. MUGETA, J. On 17/2/2018, a by-election of a member of Parliament for Kinondoni Constituent was held. For the purposes of this judgment the reasons for a midterm election are irrelevant. Prior to this day, the usual campaigns were held by all participating parties which according to Victoria Charles 1 | P a g e Wihenge (PW7), the Assistant Returning Officer, were AFP, CCK, DEMODRASIA Makini, TLP, UMD, DP, CHADEMA, CUF and CCM. Events on the last campaign date, the 16th day of February, 2018, are the concern of this case. Besides the big number of contesting parties, the evidence by the prosecution covers events at CHADEMA campaign rally. Pursuant to the election campaign timetable, CHADEMA held their campaign at Buibui grounds, Mwananyamala area. As a matter of duty, the Tanzania Police Force had to ensure peace and security at all the campaign rallies. To meet this legal mandate, according to SSP Gerald Ngiichi (PW1), CHADEMA meeting was supervised by SP Dotto. SSP Ngiichi (PW1) himself was the operations Manager charged with the general security during the campaign period. No doubt it was a lawful campaign period and security was guaranteed. What the heck turned a lawful activity into the alleged criminal acts? It is the prosecution's case that after the rally the appellants who are top CHADEMA leaders and their supporters walked towards the Kinondoni Municipal Council Office without a lawful cause resulting into breach of the peace. On the way, the police team under SSP Ngiichi blocked and finally dispersed them by force. Subsequently, on different places and dates, the 2 | P a g e appellants were arrested and charged with thirteen counts. These are first count, conspiracy to commit an offence. Second count, unlawful assembly. Third count, riot. Fourth count, riot after proclamation. Fifth count, promoting feelings of ill-will for unlawful purpose. Sixth count, raising discontent. Seventh count, promoting feelings of ill-will for unlawful purpose. Eighth count, raising discontent. Nineth count, sedition. Tenth count, sedition. Eleventh count, inciting the commission of offence. Twelfth count, inciting the commission of offence and thirteenth count, inciting commission of offence. All appellants pleaded not guilty, were tried and finally convicted of all counts in the charge sheet except the first count for which they were acquitted. Aggrieved by both conviction and sentence, except Vincent Biyegiza Mashinji who was the 6th accused person, they have preferred this appeal to protest their innocence. The petition of appeal carries fourteen grounds of appeal which for brevity I paraphrase them thus: - i. The case against the Appellants was not proved beyond reasonable doubts; ii. The trial court did not property analyse the evidence on record; 3 | P a g e iii. The trial court did not analyse the individual elements o f each offence against the evidence on record in order to justify its verdict; iv. The trial court did not consider the defence evidence; v. Exhibit P4 and exhibit P5 relating to admission o f Electronic Evidence were illegally admitted; vi. Count No. 3 and count No. 4 were duplex therefore prejudiced the appellant's defence; vii. Count No. 5 and count No. 7 were defective for failure to sufficiently disclose the nature o f the discontent that was likely to be raised by the alleged utterances; viii. Count No. 6 and count No. 8 were defective for failure to sufficiently disclose the identity o f the communities who were likely to be subject o f the promotion o f the alleged ill-will; ix. The trial court erred in law in failing to find and hold that count No. 11, 12, and 13 in the charge sheet were vague, embarrassing and prejudicial to the appellant's ability to defend themselves; x. The trial court unreasonably did not consider the alibi o f the 2nd, 3 d, 4 h, 5th, &h, f h and 3 h appellants vis a vis the 2nd, 3 d and 4 h counts in the charge sheet; xi. Any alleged words in the 5th, 7h, &h, $h and lCfh counts did not amount to criminal offences; xii. The words allegedly spoken by the 1st 7 h and 3 h appellants in counts No. 11th, 12nd and 13th respectively did not amount to inciting commission o f an offence; xiii. There was no preliminary hearing conducted per the law; xiv. The trial court erred in law in sentencing the appellants to pay fines which were reckoned to operate consecutively while the alternative custodial sentence was held to run concurrently. The appeal was heard by oral submissions where Peter Kibatala and Hekima Mwasiku, learned advocates represented the appellants. The Respondent was represented by Faraja Nchimbi, Principal State Attorney, Wankyo Simon, Senior State Attorney and Salimu Msemo, State Attorney. In my view, the above grounds of appeal are intertwined. Mr. Kibatala tried to argued them separately. In so doing, he could not avoid repeating himself, therefore, he had to adopt submissions on one ground to cover the other. In that regard, he adopted his submissions on the second ground to cover the fourth ground, ground seven to cover ground eight, grounds eleven and twelve were combined and ground thirteen was dropped. In the same vein, I have earnestly considered those grounds and have come to a conclusion that save for the fourteenth ground of appeal which is on the sentencing mode, the rest boils to two major complaints. Firstly, that the charge was not proved beyond reasonable doubts. Secondly, that the judgment of the trial court falls short of being a judgment for want of a proper analysis of evidence. I shall start with the second complaint which challenges the legality of the trial court's judgment. Mr. Kibatala complained that the trial court's judgment does not provide a proper analysis of the evidence on record against each count and reasons for reaching the decision it made. In short, he submitted that it is not a judgment for being omnibus. That considering the number of the counts, if the evidence was properly analysis the reasoning would not have covered only pages 90-98 of the judgment. To the contrary Mr. Msemo submitted that the trial magistrate did a proper analysis and accounted for the conclusions he made. In his view, the reason for the decision is brief because the counts are interwoven. In order to decide on the rival arguments, it is imperative to understand the constitution of a valid judgment in criminal cases. A quality judgment in criminal cases ought to be in accordance with the provisions of section 312 (1) of the Criminal Procedure Act [Cap. 20 R.E. 2019] (the CPA) which provides: - "Every judgment under the provisions o f section 311 shah' except as otherwise provided by this Act, be written by or reduced in writing... and shall contain the point or points for determination, the decision thereon and the reason for the decision // The issue for my determination, therefore, is whether the trial court's judgment complies with the conditions in the above section of the CPA in terms of structure and contents. The learned trial magistrate framed three issues for determination. These are: - /. Whether the accused persons have committed the offences which they stand charged; ii. Whether the prosecution side have proved its case against the accused persons beyond reasonable doubt and; ///' Whether the defence side have raised any reasonable doubt to disturb the standard o f proof by the prosecution. It is my view that in light of the second issue, the first and the third issues were unnecessary and redundant. Once it is decided in the second issue that the case has been proved, it means the accused persons committed the offences charged and their defence has not raised a reasonable doubt in the prosecution's case. If it is ruled that the case has not been proved, it means they did not commit the offences and there are reasonable doubts in the prosecution evidence either by its nature or the doubts have been raised by the defence. I understand the trial of this case was not an easy work. The proceedings count up to 752 pages most of which covering unnecessary applications and objections. The hearing of the appeal lasted for two days. Hereunder, is the structure and contents of the impugned judgment. The impugned judgment has 98 pages of which 89 pages is a reproduction of the proceedings. At pages 90 and 91, is a discussion about the criminal law principle that it is upon the prosecution to prove the case beyond reasonable doubts. The above stated issues for determination are covered in those pages too. Then the analysis of evidence follows from page 91 through to 98 and lastly is the conclusion at page 98. Therefore, in terms of structure, the judgment complied with the commonly used form of Facts, Law, Analysis and Conclusion (FLAC). The question that follows is whether that judgment contains findings based on analysis of evidence and reasons for the findings on each issue or count.
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